DELBERT A. REED v. SECRETARY OF STATE
Docket: BCD-20-126
MAINE SUPREME JUDICIAL COURT
Decided: May 7, 2020
2020 ME 57
Argued: April 28, 2020; Reporter of Decisions
PER CURIAM
[¶1] In this proceeding for review of governmental action, see
I. BACKGROUND
[¶2] In 2019, the Maine Public Utilities Commission (PUC) issued a decision granting a certificate of public convenience and necessity for construction and operation of NECEC for the provision of hydroelectric power from Québec to New England via a 145-mile energy corridor located in Maine. Central Maine Power Co., Request for Approval of CPCN for the New England Clean Energy Connect Consisting of the Construction of a 1,200 MW HVDC Transmission Line from the Québec-Maine Border to Lewiston (NECEC) and Related Network Upgrades, No. 2017-232, Order (Me. P.U.C. May 3, 2019); see
[¶3] The direct initiative process allows Maine voters to propose legislation for inclusion on a statewide ballot by obtaining a minimum number of voter signatures on petitions in compliance with various constitutional and statutory requirements.
[¶4] The procedural requirement primarily at issue here provides that “[t]he circulator of a petition must sign the petition and verify by oath or affirmation before a notary public or other person authorized by law to administer oaths or affirmations that the circulator personally witnessed all of the signatures to the petition and that to the best of the circulator‘s knowledge and belief each signature is the signature of the person whose name it purports to be and that each signature . . . was made by the authorized signer in the presence and at the direction of the voter.”
[¶5] After municipal verification that the signatories are qualified voters, petitions must be submitted to the Secretary of State for certification.
[¶6] On February 3, 2020, the initiative proponents filed with the Secretary of State a total of 15,785 petitions bearing
[¶7] By decision dated March 4, 2020, the Secretary of State invalidated a total of 12,735 of the signatures for a variety of reasons but declined to consider whether any notaries were disqualified for having also performed nonnotarial services for the campaign. The Secretary explained, “This office did not have sufficient time . . . to investigate this matter prior to the statutory deadline for issuing this decision and thus make[s] no findings regarding [CEM‘s] allegations.” See
[¶8] Reed petitioned the Superior Court5 (Kennebec County) for review of the Secretary of State‘s decision, arguing that the Secretary of State should have invalidated more than 17,000 signatures on petitions that he claimed had been notarized in violation of sections 903-E and 954-A.6 See
[¶9] After remand, and based on the additional evidence that he collected, the Secretary of State issued an amended decision dated April 1, 2020, containing the following findings, accompanied by the Secretary‘s conclusions and determinations based on those findings. All of the findings are supported by competent evidence in the agency record.7
- David McGovern Sr. both circulated petitions and later notarized petitions for other circulators. Because he performed both notary and nonnotary services for the campaign, the 110 signatures on the petitions he notarized are invalid.
-
Michael Underhill circulated petitions and later notarized petitions for another circulator. Because he performed both notary and nonnotary services for the campaign, the 69 signatures on the petitions he notarized are also invalid. - Wesley Huckey works in a city clerk‘s office. With his employer‘s permission, he was hired to notarize petitions for the campaign on the evenings and weekends. He was not hired to perform any other services for the campaign. On one occasion, however, he transported certified petitions from the city clerk‘s office to the campaign field office. Although the Secretary of State found that this conduct “could” constitute a violation of
21-A M.R.S. § 903-E , he determined that any such violation was de minimis and declined to invalidate the affected signatures on that basis.8 - Leah Flumerfelt was originally recruited to be a circulator for the initiative. When the campaign learned that she was a notary, it instead hired her to notarize petitions. On one occasion, she also delivered petitions to town offices, and, during one weekend, she organized petitions in the campaign office and cleaned the campaign office. The Secretary of State concluded that because all of Flumerfelt‘s notarizations occurred before she performed these nonnotarial services, all of the signatures on petitions she notarized are invalid.
- Brittany Skidmore was hired as a notary for the campaign, and she performed notary services from December 17, 2019, to January 24, 2020. During the week of January 27, 2020, she worked in the campaign field office, reviewing petitions she had notarized and filling in gaps in her notary log, and she notarized some circulator affidavits. The Secretary of State concluded that these acts constituted part of her notary services.
Skidmore also reviewed those petitions to make sure that the circulator‘s name and identification number were properly written on each petition, see21-A M.R.S. § 901-A(2) ; she filled in the circulator‘s name and identification number on multiple petition forms. She also found one petition (which she had not notarized) that she placed with other invalid petitions. As with Flumerfelt, the Secretary of State concluded that, because Skidmore had not notarized any petitions after she performed these nonnotarial services, at the time she notarized the petitions, she was qualified to do so.9 - Two individuals attested that they did not sign petition #743, circulated by Megan St. Peter, although their purported signatures appeared on
that petition. The municipal registrar had already rejected both signatures, however, and both—along with almost all of the other signatures on petition #743—were already invalidated in the Secretary of State‘s original order. Based on the additional information, the Secretary of State concluded that St. Peter‘s oath could not be relied upon at all, and he invalidated all 174 signatures collected by St. Peter that had not already been invalidated.
The Secretary of State rejected Reed‘s request for a “full-scale investigation of potential fraud” with regard to the entire campaign based on the absence of any suggestions of fraud beyond those regarding petition #743.
[¶10] In total, the Secretary of State invalidated an additional 3,597 signatures for reasons that included the conduct of McGovern, Underhill, Skidmore, and St. Peter. Because the Secretary of State determined that 66,117 signatures remained valid—3,050 more than the 63,067 required—the Secretary of State again concluded that the initiative petition was valid. See
[¶11] By judgment dated April 13, 2020, the court affirmed the Secretary of State‘s amended decision. See
II. DISCUSSION
[¶12] Reed‘s arguments can be condensed to two claims: that the Secretary of State erred by (1) validating the petitions notarized by three notaries—Huckey, Flumerfelt, and Skidmore—based on the Secretary of State‘s misinterpretation and misapplication of
A. Sections 903-E and 954-A
[¶13] Reed argues that the Secretary of State misinterpreted and misapplied sections 903-E and 954-A by finding that Flumerfelt and Skidmore each performed both notarial and nonnotarial services for the campaign but by nevertheless failing to invalidate all of the signatures on the petitions they notarized.12 The Secretary
[¶14] We interpret every statute de novo as a matter of law to “give effect to the intent of the Legislature,” first by examining its plain language. Knutson, 2008 ME 124, ¶ 9, 954 A.2d 1054; see Melanson v. Sec‘y of State, 2004 ME 127, ¶ 8, 861 A.2d 641. If the plain language is unambiguous, we interpret the statute according to its unambiguous meaning. NextEra Energy Res., LLC, 2020 ME 34, ¶ 22, --- A.3d ---. If, however, a statute is ambiguous—i.e., “it is reasonably susceptible to different interpretations“—we defer to the agency‘s reasonable construction when the agency is tasked with administering the statute and it falls within the agency‘s expertise. Id. (quotation marks omitted).
[¶15] Title
1. Certain notaries public and others. A notary public or other person authorized by law to administer oaths or affirmations generally is not authorized to administer an oath or affirmation to the circulator of a petition under section 902 if the notary public or other generally authorized person is:
A. Providing any other services, regardless of compensation, to initiate the direct initiative or people‘s veto referendum for which the petition is being circulated. For the purposes of this paragraph, “initiate” has the same meaning as section 1052, subsection 4-B; or
B. Providing services other than notarial acts, regardless of compensation, to promote the direct initiative or people‘s veto referendum for which the petition is being circulated.
Title
It is a conflict of interest for a notary public to administer an oath or affirmation to a circulator of a petition for a direct initiative or people‘s veto referendum under Title 21-A, section 902 if the notary public also provides services that are not notarial acts to initiate or promote that direct initiative or people‘s veto referendum.
[¶16] Notably, sections 954-A and 903-E are both phrased in the present tense.
[¶17] A literal reading of these statutes might suggest that a notary is disqualified only if the notary “is providing” nonnotarial services to the initiative campaign at the precise time that he or she performs a notarial act. Such a reading would defeat the obvious legislative purpose of discouraging fraudulent notarizations related to direct initiative campaigns, however, because a petition circulator who is also a notary could then simply alternate between performing notarial work and nonnotarial work without violating sections 954-A and 903-E. We are confident the Legislature did not intend this absurd result. See Doe v. Reg‘l Sch. Unit 26, 2014 ME 11, ¶ 15, 86 A.3d 600 (“We have the power and duty to interpret statutes so as to avoid absurd results.” (alterations omitted) (quotation marks omitted)); see also Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 20, 107 A.3d 621 (“A plain language interpretation should not be confused with a literal interpretation . . . .“). Thus, the plain language of the statutes, standing alone, does not clearly establish their temporal reach. We therefore are satisfied that there is more than one reasonable interpretation of section 903-E and section 954-A; the statutes are ambiguous. See NextEra Energy Res., LLC, 2020 ME 34, ¶ 22, --- A.3d ---.
[¶18] The Secretary of State is the constitutional officer entrusted with administering—and having expertise in—the laws pertaining to the direct initiative process.
[¶19] The Secretary of State‘s interpretation of the statutes at issue here focuses on the sequence in which a notary provides notarial services and nonnotarial services to the campaign. The Secretary of State invalidated the petitions notarized by McGovern and Underhill because they had previously provided nonnotarial services to the campaign by circulating petitions. On the other hand, the Secretary of State did not invalidate petitions notarized by Flumerfelt and Skidmore because they provided nonnotarial services to the campaign only after completing
[¶20] Similarly, the Secretary of State‘s construction and application of sections 954-A and 903-E are also reasonable given the longstanding general principle that the validity of a notarial act is determined by reference to the circumstances that existed at the time of the act, not by reference to unrelated circumstances arising afterward.15 See United States v. Curtis, 107 U.S. 671, 672-73 (1883) (“[T]he underlying question is whether the notary public . . . was, at the respective dates of the oaths taken by [the defendant], authorized by the laws of the United States to administer such oaths.” (emphasis added)). Reed‘s contrary contention—that the statutes reach retroactively, so as to prohibit notaries from providing nonnotarial services to a direct initiative campaign at any time before the petitions are submitted to the Secretary of State—would retroactively invalidate and undo notarial acts that were authorized and valid when performed. It therefore would materially alter the law of notaries in contravention of the established principle that “we construe a statute to alter the common law only to the extent the Legislature makes clear its intent to do so.” Watts v. Watts, 2003 ME 36, ¶ 9, 818 A.2d 1031.
[¶21] Finally, the Secretary of State‘s interpretation rationally advances the legislative purpose of discouraging fraudulent notarizations by prohibiting the use of notaries who have a demonstrable conflict of interest at the time of their notarial acts in connection with the campaign.
[¶22] In light of the deference we must afford the agency given the statutory ambiguities, we conclude that the Secretary of State did not err by declining, pursuant to sections 903-E and 954-A,16 to invalidate the petitions that were notarized
B. Fraud Investigation
[¶23] Reed also contends that the Secretary of State, after being presented with evidence of fraud, erred by failing to conduct a fraud investigation of the entire campaign. The evidence of fraud supplied to the Secretary of State consists of the following:
- The affidavits of two individuals whose signatures were forged on petition #743 and copies of petition #743.
- An affidavit from a principal of Revolution Field Strategies (RFS), the entity hired to manage the campaign, as well as related correspondence from Reed‘s counsel, stating that the predecessor company of RFS had either been involved with or was the victim of canvassers’ fraud in a 2014 initiative campaign in Missouri.
- Correspondence from Reed‘s counsel asserting that two signatures gathered by St. Peter appeared to be duplicates of—and in different handwriting than—two signatures gathered by another circulator.
- Correspondence from Reed‘s counsel asserting that another RFS employee17 stated that St. Peter‘s supervisor, Melissa Burnham, was aware of St. Peter‘s forged signatures and still submitted St. Peter‘s petitions for validation.
In particular, Reed argues that the Secretary of State had an obligation to investigate St. Peter‘s and Burnham‘s knowledge of fraudulent activity within the campaign.
[¶24] Although Reed presented evidence that Burnham may have been aware of St. Peter‘s fraud, no allegations were made of fraud having been committed on any petition other than petition #743, which was invalidated in its entirety, or with regard to any circulator other than St. Peter, whose gathered signatures the Secretary of State already invalidated. Instead, Reed has argued that the forgeries that the Secretary of State had already sussed out “provide indicia of systemic irregularities” and has asserted that other evidence “raises the significant possibility” of other forms of fraud. Based on all of the evidence presented, however, combined with the absence of any suggestion of fraud raised by municipal officers,18 the Secretary of State reasonably determined that such broad assertions were insufficient grounds to launch an additional investigation of the entire campaign. See Me. Taxpayers Action Network, 2002 ME 64, ¶ 12 n.8, 795 A.2d 75. Although the Secretary of State certainly could have sought to interview Burnham, the RFS employee who identified Burnham, or both of those people, we cannot, in these circumstances, conclude that the Secretary of State‘s failure to do so constitutes an error of law or an abuse of discretion.
The entry is:
Judgment affirmed.
Joshua A. Tardy, Esq., and Joshua A. Randlett, Esq., Rudman Winchell, Bangor; and Jared S. des Rosiers, Esq., Nolan L. Reichl, Esq. (orally), Joshua D. Dunlap, Esq., and Newell A. Augur, Esq., Pierce Atwood LLP, Portland, for appellant Delbert A. Reed
Sigmund D. Schutz, Esq., Anthony W. Buxton, Esq., and Robert B. Borowski, Esq., Preti Flaherty Beliveau & Pachios LLP, Portland, for appellant Industrial Energy Consumer Group
Gerald F. Petruccelli, Esq., and Nicole R. Bissonnette, Esq., Petruccelli, Martin & Haddow, Portland, for appellant Maine State Chamber of Commerce
Aaron M. Frey, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Secretary of State
David M. Kallin, Esq. (orally), Amy K. Olfene, Esq., and Adam R. Cote, Esq., Drummond Woodsum, Portland, for appellee Mainers for Local Power
Christopher T. Roach, Esq., Roach Ruprecht Sanchez & Bischoff, P.C., Portland, for appellee NextEra Energy Resources, LLC
Patrick Strawbridge, Esq., Consovoy McCarthy PLLC, Boston, Massachusetts, for amici curiae Garrett Mason and Kevin Battle
Business and Consumer Docket docket number AP-20-02
FOR CLERK REFERENCE ONLY